Challenged in China

2. Although not explicit, legal threats to journalists persist

By Madeline Earp

Even as China’s virtual landscape buzzes with criticism of social injustices, government policy, and propaganda directives, independent journalism and expression are still perceived by the Communist Party as explicit political threats. Authorities also exploit vague legal language to prosecute dissenters based on published content, or bypass due process altogether, holding critics without charge or without notifying family members.

In 2010, Ji Pomin, son of a Communist Party revolutionary,
sent a text message to hundreds of contacts inquiring about the health of Jiang
Zemin, inadvertently sparking rumors that the former Chinese president—still a
powerful political player—had died. A couple of days later, Ji was called to
the street below his Beijing apartment by secret police masquerading as
delivery men, according to an interview Ji gave John Garnaut of The Sydney Morning Herald.
They pulled a hood over his head, drove him to a remote villa, and questioned
him for hours about his view of Jiang—including his assertion, posted online in
2003, that Jiang had fabricated a revolutionary background to get ahead in the
party hierarchy, according to Garnaut. (Jiang’s family has denied this claim,
according to Garnaut.) Recipients of the text message had their homes
ransacked, Garnaut reported.

Ji, who is descended from party royalty, was released.
The elderly historian who sparked Ji’s suspicions about Jiang’s background,
however, was not so lucky. In late 2010, 72-year-old Lü Jiaping disappeared
from public view. In 2012, CPJ learned
he had been sentenced for inciting subversion of state power in May 2011, along
with his wife and a close associate, Jin Andi. A translation
of Jin’s unsuccessful appeal verdict lists articles Lü published as early as
2000 and as recently as 2010, when the three were apparently detained. The
appeal document reveals the steps the public security bureau took to indict
him, including email data from providers Sina and Wangzhiyi, and analysis of
the reach of his articles:

The 3rd Brigade of the
Beijing Public Security Bureau’s Internet Security and Defense Office
discovered on the international Internet an article by “Lü Jiaping” on a
website with the URL www.maoflag.net entitled “Lü Jiaping: Why the Lhasa Riot
Incident Was not Stopped Ahead of Time.” [ ] On September 9, 2010, there were
four pages on the international Internet linking to posts or reposts of this
essay, and it had been clicked on 2,768 times, and had 12 responses.

Lü had ruffled official feathers in the past: In
2001, his son Hu Dalin was interrogated
for helping to post his articles online. But somehow in 2010—perhaps because of
growing interest in his reporting on Jiang—he became a target for prosecution. And
the authorities had a decade of online activity to produce as evidence against
him. Family and friends were not notified of Lü’s detention, according to
international news reports.

Advocates of free press and expression often try to
analyze China’s imprisoned journalists to determine which lines cannot be
crossed. But as Lü’s case illustrates, it’s possible to cross the line and
violate content restrictions repeatedly, even for years at a time, without
triggering criminal charges. Instead, the line is something prosecutors can lay
down retroactively to turn expression into a criminal act.

Under the Chinese legal system, criticism of the
state is, in and of itself, an attempt to influence populations. Incitement, in
the statute on anti-state activity levied against Lü, is defined as “spreading
rumors or slanders or any other means to subvert state political power or
overthrow the socialist system,” Hong Kong-based China legal expert Joshua
Rosenzweig told CPJ. “The key part is the ‘spreading rumors or slanders.’ I’d
say that ‘inciting others’ is not really all that important, practically
speaking, because it is not necessary for the prosecution to prove that anyone
was incited to do anything—or, if incited, that [the suspects] took steps to do
[it].”

In 2013, the party does not uniformly criminalize
critical journalism. Yet digital information leaves a trail that can be
mustered—even 10 years after publication—as justification for silencing a voice
that the party deems dangerous to its rule.

The Chinese government did not respond to CPJ's written request, sent via the Chinese Embassy in Washington, D.C., to comment for this report.

During the “golden decade” of rule by Hu Jintao and
Wen Jiabao, the pair oversaw expanded discussion of political and human rights
issues, but the outward signs of openness gave the Communist Party cover to
continue, and even step up, repressive activities. For example, the state
council published its first National Human Rights Action Plans, for 2009-2010
and 2012-15. The reports lacked benchmarks to bring the country in line
with international law, but served to deflect some criticism. As state news
agency Xinhua reported, “An action plan for human rights protection can be
regarded as a sign that the state attaches great importance to human rights
issues.”

The language on free speech was cast in a passive
construction as the “Right to be Heard,” which seemed to sidestep the issue of
whether expression is a right. Furthermore, the plans referred to journalists’
“legitimate rights” to report: The word “legitimate” introduced a distinction between
rights that the state recognized and universal human rights—which by extension,
might be considered illegitimate.

Meanwhile, China’s record of imprisoning journalists
and writers fluctuated during Hu and Wen’s rule, but did not transform. In its
annual census, CPJ documented 39 journalists behind bars in 2002
and 2003, and 32 in 2012.
In 2010, China was not the world’s sole worst jailer of journalists for the
first time in 10 years—it shared that distinction with Iran. By 2012, China was
the third worst, behind Turkey and Iran. But this was more a reflection of
worsening conditions for the press in the latter two countries than an
indicator of improvement in China. Anti-state charges—including subversion or
inciting subversion of state power, passing state secrets, instigating riots,
or inciting separatism—were used to jail the majority of journalists jailed in
China over the decade, CPJ data shows.

In seeking to explain why
the Communist Party permits some outspoken criticisms and deems others a
criminal offense, some China specialists argue that critique is permitted as
long as those articulating it are not, consciously or otherwise, likely to
rally anti-government activity.

A proponent of this view
is Gary King, the Albert J. Weatherhead III University Professor
at Harvard University, who co-authored a 2012 study
on online media censorship in China. The study asserts,“Contrary to previous
understandings, posts with negative, even vitriolic, criticism of the state,
its leaders, and its policies are not more likely to be censored. Instead, we
show that the censorship program is aimed at curtailing collective action by
silencing comments that represent, reinforce, or spur social mobilization,
regardless of content.” According to the findings, the goal of Chinese
censorship “is to reduce the probability of collective action by clipping
social ties whenever any localized social movements are in evidence or
expected.” King and his colleagues did not pursue the study of “clipping social
ties” offline, to gauge the likelihood that the authors of censored posts would
be arrested. King told CPJ, “Our hypothesis would probably be that those who
try to move populations rather than those who are critical of the state are
more likely to be the target for legal action.”

The changing faces of China’s imprisoned journalists
lend weight to the assertion that the state fears activist media more than
those in the mainstream profession. Of the 32 journalists jailed at the time of
CPJ’s 2012 census, at least 19 were ethnic minorities—Uighurs, from the
Xinjiang Uighur Autonomous Region, who were arrested after rioting in the area
in 2009, and Tibetans, from the Tibetan Autonomous Region and Tibetan areas of
western China, following unrest there in 2008. The number of ethnic-minority
journalists in jail climbed for the fourth consecutive year.

The arrests of many of the 13 ethnic-majority Han
Chinese journalists in jail can also be traced to a crackdown—sometimes
pre-emptive—on organized demonstrations of dissent. For example, Liu Xiaobo was
detained in 2008, the day before the online release of his Charter 08 petition
for political reform, although he was ultimately sentenced for articles on
other subjects (Liu was awarded the Nobel Peace Prize in 2010). Tan Zuoren, an
environmentalist in Sichuan, worked with families to document the children
killed when school buildings made with cut-price materials collapsed during the
2008 earthquake. He was arrested before the release of his findings, which he
had scheduled to coincide with the firstanniversary of the tragedy; his sentence was for an eyewitness account of
the 1989 Tiananmen Square crackdown published overseas before the earthquake
took place, CPJ research shows. And Chen Wei was among dozens of writers and
dissidents rounded up after anonymous Internet users called for a “Jasmine
revolution” in China. While others detained at this time were released and kept
under surveillance at home, according to CPJ research, Chen’s articles about
democracy published on internationally hosted websites led to a nine-year
sentence for inciting subversion.

Still, in order to sentence Chen, Tan, Liu, and
others for incitement, there was no need, under Chinese law, to show that they
participated in, or inspired others to, anti-state action—just as with Lü Jiaping.
“The idea seems to be that expression carries the potential to lead others to
doubt the political order and acting to bring its end,” legal expert Rosenzweig
said.

Police and security agents who want to
silence journalists enjoy another legal advantage. Vague statutory language allows them to detain individuals at home or at secret sites instead of official
detention centers—and without the need to inform families or legal counsel.

House
arrest and secret detentions have both arguably become more visible in the Internet
age. Blind legal activist Chen Guangcheng
broadcast video of security agents encircling his home in 2011, while
Associated Press journalists dodged a security detail to interview Liu Xiaobo’s
wife, the artist Liu Xia, in 2012. "Residential surveillance without notification has been in
existence for some years,” Chinese legal scholar Flora Sapio told CPJ. Now,
evidence is accumulating in the public domain. Internationally
renowned artist and documentarian Ai Weiwei was missing for 43 days in 2011
before his wife was permitted to visit him in a location that was neither the
house they shared, nor a formal detention center. Besides Ai, writer Yang
Hengjun and lawyer and blogger Xu Zhiyong also disappeared for a few days each
that year, drawing local and international
attention to the abusive practice. “When everyone thought I had been
kidnapped, they all assumed it was by the government—doesn't that tell you
something?” Yang commented on his reappearance.

The attention may have
added momentum to a move to strengthen the authorities’ legal powers in an
otherwise gray area. In March 2012, the National People’s Congress amended the
Criminal Procedure Law. Article 73 of the amendment allowed for suspects deemed a
threat to national security to be held in undisclosed locations. Police are
required to inform a suspect’s family whether the detention is at a residential
site or not, though some details, including where and why the suspect is being
held, can remain classified. (Observers praised some aspects of the amendment,
such as a requirement to tape interrogations in death-penalty cases to prevent
forced confessions, according to international news reports.)

The amendment maintained
the original law’s obscure language, which renders it open to abuse by police
and security agents. Such abuse is hard to monitor. Covert detentions are classified as state secrets, according to a 2006 publication by former Chinese
police officer and legal expert Ma Haijian. While police keep data relating to residential
surveillance, Sapio told CPJ, they are not public, and the data “would
not tell us whether notification was provided,” or in other words, how covert was
the detention. Furthermore,
“In practice China’s law enforcement
officials frequently twist even clear legal language to their convenience, and
sometimes act totally outside or contrary to the law,” as legal scholars Jerome
Cohen and Yu-Jie Chen wrote in the Hong Kong-based South China Morning Post in September 2012.

Individuals can literally disappear when police do not
fulfill their legal obligation to register detentions. News of Lü Jiaping’s and
Jin Andi’s imprisonment broke only in February 2012 when Lü’s wife, Yu Junyi,
was released from her home, where she had been held since Lü was detained,
according to CPJ
research. Journalist Gao Yingpu’s wife signed a written promise not to
publicize her husband’s 2010 arrest for criticizing former Chongqing party
secretary Bo Xilai’s anti-corruption campaign in online postings; he never
obtained legal representation or an appeal as a result, and his imprisonment
for endangering state security only came to light in an online appeal by a
former classmate almost two years later. His family and friends believed he was
working in Iraq. Gao, Lü, and Jin were still in prison at the time of CPJ’s
annual prison census on December 1, 2012.

Details of
these neglected cases came to light just as the criminal law amendment was
adopted. Unusually, the draft law was made
available for public feedback before it was adopted, and was rigorously
assessed in the Chinese media. Over 80,000 people responded, and more
repressive aspects of the amendment were watered down as a result, according to
The New York Times; earlier drafts would have allowed police to hold
suspects for up to six months without notifying family. But the consultative
process was far from perfect. Much of the criticism called for the elimination
of secret detentions, not the adjustment to the notification requirements that
made it into the final amendment.

One notable
change over the decade of Hu and Wen’s rule is that the prospect of criminal
charges against traditional journalists shrunk considerably. In 2002, nine professional
journalists were behind bars. Ten years later, by contrast, none of the 13 Han
Chinese journalists in jail had worked in traditional media; all were charged
for online writings published overseas.

January 2004
saw a set of emblematic arrests: Li Minying, former editor of Guangdong
province’s respected newspaper Southern
Metropolis Daily, was arrested and sentenced on trumped-up corruption
charges along with the Daily’s
manager, Yu Huafeng; another editor, Cheng Yizhong, was also detained for five
months. The paper had broken a series of stories that embarrassed local
officials, and the sentences were widely considered to be payback.

Nowadays, to
keep mainstream journalists in line, propaganda officials are more likely to
rely on internal reprimands—including fines, enforced leave, and demotion or
dismissal. Early in 2011, the publisher of Southern
Metropolis Daily, the Southern Media Group, forced veteran columnist and
editor Zhang Ping to resign
after coming under pressure from propaganda authorities over his columns on
sensitive topics such as political reform. Zhang had been demoted and shuffled
between publications in the past. “Many times I have been told not to write and
that if I agreed I would be able to get more benefits,” he told the U.K.’s Guardian at the time of his dismissal.

Today’s
different policies toward professional journalists and their more activist
colleagues have helped drive a wedge between the two communities. Professional
journalists rarely use domestic media outlets to highlight the cases of jailed
freelancers, though some do so on personal social media accounts. One exception
has been sympathetic domestic press coverage of blogger Chen
Pingfu, a former factory worker and teacher who turned to playing his
violin on the street after he lost his job and struggled to pay for health care
and other expenses. Chen was charged with anti-state crimes for his online
chronicles of injustice, including rough treatment by police. The coverage may
have influenced prosecutors, who dropped the charges in December 2012,
according to international news reports.

Against this
backdrop, international media and press freedom advocates closely watched an
unprecedented revolt by journalists at another paper in the Southern Media
Group, Southern Weekly (sometimes
translated as Southern Weekend), in early 2013 when local censors
rewrote a New Year editorial promoting political reform as a message supporting
the Communist Party. The staff sent open letters calling for the ouster of the
provincial propaganda chief, Tuo Zhen, and went on a short-lived strike.
Supporters rallied outside their Guangzhou offices with placards calling for
press freedom; a dozen protesters were detained. Some other mainstream Chinese
news outlets published messages in sympathy, and people from ordinary Internet
users to celebrities took
up the cause on social media.

The Southern Weekly demonstration was an
unusual instance of journalists and activists acting, if not in concert, at
least in parallel. Increasingly, grassroots reporting online pushes
the agenda of traditional media; and commercial concerns spur newspapers
and broadcast outlets to dig deeper in order to compete. If journalists and
activists acknowledge and learn from each other, covert law enforcement
activities and censorship could get the publicity needed to help change the
minds of the Chinese public and sway leaders to reform policies.

Madeline Earp is a research analyst at Freedom House, where she covers Internet freedom in Asia for the Freedom on the Net report. Previously, she was senior researcher for CPJ’s Asia Program. She has studied Mandarin in China and Taiwan, and graduated with a master’s in East Asian studies from Harvard.